"We admit the special appeal to try whether, under the circumstances, and the peculiar nature of the moonsiff's decision, it was not incumbent upon the principal sudder ameen to enter fully into the merits of the question of the legality of the sale." JUDGMENT. legal form, and, as there was a balance due by the petitioner, against which finding he had not appealed, the sale must stand good: he consequently reversed the lower court. Held, on special appeal by the plaintiff below th below, that, as quiesced in order of the the decision of the moonsiff, declaring rupees 21 to be the sale was due, and as It appears from the record that the plaintiff in the summary suit sued the defendant and obtained a decree for rupees 111. On the defendant's bringing a suit in the civil court for the reversal of the same, the moonsiff modified the decision of the revenue authorities, reducing the sum due to rupees 21: he also cancelled the sale. Against this decision the plaintiff did not appeal. The sale purchaser who had been made a defendant did however appeal from that portion of the order reversing the sale. And the principal sudder ameen found that the sale was made in legal form, as there was a balance due by the petitioner, against which finding he had not appealed, the sale must stand good: he therefore reversed the decision of the court of first instance. The plaintiff below now appeals specially against the finding of the principal sudder ameen, reversing the decision of the lower court who cancelled the sale, but, ground exists we think, without reason. As the plaintiff acquiesced in the decision for interfering of the moonsiff declaring rupees 21 due from him to the defendant, of the princiand as the law, prescribing the form for the sale of undertenures, pal sudder VIII of 1835, no where prescribes that the amount for which the sale The special is made due must be stated in the proclamation of sale, it follows appeal disthat on plaintiff's own admission there was a debt outstanding missed, with sufficient to sustain the sale; and as the principal sudder ameen has found that the sale was otherwise made in proper legal form, nothing remains for the Court but to dismiss the special appeal, with costs. made in due legal form, no with the decree ameen. costs. Objections, in bar of hearing a suit, not pleaded in the lower court, not allowed to be brought for ward in special appeal. CASE No. 791 OF 1857. wwwwwwww Special Appeal from the decision of Mr. A. Davidson, Principal Sudder Ameen of Midnapore, dated 13th February 1857, affirm ing a decree of Baboo Rajmohun Mitter, Moonsiff of Newaul, dated 15th March 1856. BHOWANYCHURN DASS AND RADHAKISSEN DASS, (DEFENDANTS,) APPELLANTS, versus GUNGAPERSAUD DASS, (PLAINTIFF,) RESPONDENT. Vakeel of Respondent-Baboo Moheschunder Chowdree. THIS case was admitted to special appeal on the 23rd October 1857, under the following certificate recorded by Messrs. A. Sconce and J. S. Torrens. "This suit was instituted by Gungapersaud Dass to quash a deed of sale, dated 11th April 1259, on the ground that it was executed under duress. The moonsiff on this ground quashed the deed, and as that decree has been affirmed, on appeal, the petitioners object to the legality of these orders, inasmuch as the deed in question was executed by five persons and that four of these were not associated with plaintiff as plaintiffs, nor were they made defendants in the suit. "The four persons here alluded to were sons of the plaintiff, and it is said by him in his plaint that at the date of the deed two were majors and two minors; but as the kubala has been absolutely set aside, we admit the special appeal to try whether the order of the lower court should not be so far modified as to bind only the plaintiff, Gungapersaud, and not to prejudice defendant with respect to others, alleged vendors, who are not parties to the suit." JUDGMENT. The objection taken on special appeal is that all the proper parties have not been brought before the Court; that plaintiff and his four sons, two of whom had attained majority and two were minors, executed the deed of sale now sought to be set aside, and plaintiff had failed to make them parties to the suit, and therefore the case should have been nonsuited; at any rate the decree obtained by plaintiff should be restricted in its operation to the plaintiff's own rights in the property sold. On reference to the record, we find that the objection now brought forward as to defect of parties was not distinctly urged in the lower courts, and the special appellants allowed the case to be tried on its merits. We cannot therefore admit in special appeal an objection not brought forward when the suit was first heard, or on the appeal from the decision of the court of first instance. We therefore dismiss this appeal, with Special Appeal from the decision of Mr. J. E. S. Lillie, Acting Judge of East Burdwan, dated 30th July 1856, reversing a decree of Moulvee Fuzleh Rubbee Khan, Principal Sudder Ameen of that district, dated 20th July 1855. RAMESHUR SEIN MOONSHEE, (PLAINTIFF,) APPELLANT, versus PRANNATH CHOWDREE, AND OTHERS, (DEFENDANTS,) Vakeels of Appellant-Baboos Aushootosh Chatterjea and Vakeels of Respondents-Baboos Poornochunder Roy and THIS case was admitted to special appeal on the 17th November 1857, under the following certificate recorded by Messrs. A. Sconce and J. S. Torrens. "This was a suit to establish plaintiff's title to hold a tenure as a mookururee existing before the decennial settlement. The court of first instance decreed for plaintiff, but the judge has reversed his decision. It is urged in special appeal that the judge has failed to consider the weight of certain papers produced from the revenue records of the Board of Revenue, dated in 1180 B. S., which made mention of the talook, and also that he admits its existence in 1202 B. S.; that the existence at the latter date would at all events bar the zemindar's right to oust the plaintiff, special appellant, whatever might be his right to enhance the jumma. "We admit the special appeal to try whether the judge should not have made further enquiry in respect to the authenticity of the papers produced from the Board's office, and also to try the question raised in consequence of the admission of the existence of the tenure in 1202 B. S." JUDGMENT. In respect to the point of whether the judge should not have made further enquiry as to the authenticity of the papers received from the Board's office, we observe from his decision that he records his view, that those papers are entitled to little weight in his opinion. The secretary of the Board mentions them to be "wholly unauthenticated," and without trace from whence or when they were put into the karkoon office. The weight to be attached to any specific evidence in a court below is not a point on which we can adjudicate in special appeal. In respect to the papers of 1202, the judge considers that, as the name only, and not the nature of the tenure, is specified in the papers, they do not afford sufficient proof of plaintiff's having held the land as a shikmee talook before the settlement. This also is a point regarding the weight to be given to evidence, and therefore not one for us to decide in special appeal. The pleader for special appellant urges, that Section XXVI. Act I. of 1845, protects him from ejectment; but on being called upon to shew how the tenure of his client came within the definitions of exempted tenures in that Section, he was unable to do so. We reject the appeal, with costs on special appellant. Special Appeal from the decision of Mr. F. A. Glover, Officiating PURANKOOMAR BRAHMUNEE, (PLAINTIFF,) Appellant, versus HUROMOHUN CHOWDREE AND OTHERS, (Defendants,) Vakeels of Appellant-Baboo Ramapersad Roy and Mr. Vakeels of Respondents-Baboo Bunghseebuddun Mitter, undervalua THIS case was admitted to special appeal on the 15th January A plea of 1858, under the following certificate recorded by Messrs. A. Sconce tion, dismissed and J. S. Torrens. by the lower ground of of Act IX. of "Petitioner, proprietor of a half share in a zemindaree, institut- court, is no ed this suit to recover a considerable extent of land held by defend- appeal under ants. The latter against plaintiff set up a lakhiraj title; but the first court, finding this plea not to be sustained, gave judgment for plaintiff. On appeal the judge, considering that plaintiff has erred in not valuing her suit at 18 times the value of the land, has reversed the principal sudder ameen's judgment and recorded an order of nonsuit. "Two grounds are submitted for the admission of a special appeal. First, it is contended that as the principal sudder ameen tried the point of undervaluation and held it not to affect the sufficiency of the plaint, it was not competent to the judge, on appeal, to reverse the judgment of the lower court upon that point. "Next, it is argued that as plaintiff declared the land sued for to be mal land, she without illegality valued the land according to the character which she assigned to it, and that, as regards her claim, the question was of the nature of a boundary suit, that is, whether the disputed land belonged to the plaintiff's estate or not. "We admit the special appeal to try both points." the provisions 1854, as it is not productive of injury to either party, when it does not affect the jurisdiction. |